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Birmingham City Council (18 010 790)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 20 Mar 2019

The Ombudsman's final decision:

Summary: The Council was at fault as it did not formally consider whether to exercise discretion to disregard the value of a property when making a financial assessment towards care costs. In order to remedy the injustice, the Council should now formally consider this. Once the outcome is known, the Council should then write and outline the options to the family of the resident in care, including the outcome of a new backdated financial assessment if needed. Some of the advice given to the family was confusing, but this did not alter the outcome for Mrs B, as it is likely she would have always needed to pay for her care.

The complaint

  1. The complainant, Miss B, complains for her mother, Mrs B. Miss B complains that a social worker did not tell her that her mother would need to pay for her residential care before selling her house.
  2. Miss B says that her family are in the process of selling her mother’s house but may have made different decisions if they had been aware they would need to pay for her care before selling the house.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I read the papers sent by Miss B and discussed the complaint with her.
  2. I considered the Council’s comments about the complaint and any supporting documents it provided.
  3. I gave the Council and Miss B the opportunity to comment on my draft decision.

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What I found

  1. Mrs B had been in hospital for several months. The hospital discharged Mrs B to her home but she fell and returned to hospital. Mrs B fell while in hospital and broke her femur.
  2. Mrs B has children, two of whom (including Miss B) felt she should stay in a care home in the UK. The other children felt she should move to another country where she has family.
  3. The Council’s notes say that on 8 November 2017 the doctor considered Mrs B medically fit for discharge. The social workers notes say that ‘on a balance of probabilities, it is her professional opinion that Mrs B lacks the capacity to make decisions about her discharge destination and long term accommodation as she has not be able to demonstrate she can understand, retain, weigh up, and use provided information’.
  4. An assessment on 30 November 2017 decided that ‘Mrs B was eligible for Single Banded Nursing Contributions of £155.08p towards a nursing placement. The assessment said that a 24 hour placement would be in Mrs B’s best interests and her daughters were all agreed that discharge back to the home she shared was unsafe at this time’.
  5. There is a note on the file that another of Mrs B’s daughters confirmed that Mrs B did not have above the £23,450 threshold. The file note says the social worker explained the Council would normally pay £496 per week towards a placement, anything above this figure is classified as a top-up fee which has to be paid via a third party, and funds cannot be taken out of Mrs B's own funds. The social worker explained Mrs B would need a nursing with dementia placement. The social worker notes of the meeting of 30 November 2017 says that she gave Miss B paying for care -- choice of home and top up payments and deferred payments leaflet. Miss B says she does not remember receiving leaflets at the meeting.
  6. The social worker wrote to confirm this information and asked Mrs B’s family to complete a financial assessment form.
  7. Miss B emailed the Council on 17 December 2017. She asked ‘can you clarify how the funding works for someone who has capital or assets over the minimum threshold (I think this is £23,000)’.
  8. The social worker replied on 18 December 2018 that ‘if someone has over £23,250 they are self-funders and would fund the full cost of any placement. Please can you confirm if your mum has above this threshold? If so, I would advise you to contact a company who will work with the family to identify a suitable placement and vacancies’.
  9. Miss B telephoned the social worker on 18 December. The notes of the call say the family are now considering selling the house and using the funds to pay privately for a nursing home. The social worker noted that she asked if Mrs B had above the £23,250 threshold in savings, and Miss B did not confirm or deny this. The social workers notes say that she discussed deferred payments and asked Miss B if she was still living at the property. As Miss B said yes, the social worker explained the local authority may disregard the property given this. The social workers notes say she explained that once Mrs B sold her house, she would have to pay the full cost of her care. The social worker emailed a leaflet on deferred payments to Miss B.
  10. Miss B returned a partly completed financial assessment form on 29 December 2017. She said she had not completed or signed it as she wanted more details on how the funding works. The form said that Mrs B owned her home outright, but that Miss B continued to live there.
  11. On 29 December 2017 the social worker emailed Miss B to ask her to confirm if it was correct they were selling Mrs B’s house to fund the placement. The social worker sent the leaflet about deferred payments and self-funding care.
  12. The email from the social worker said ‘please can you confirm if your mum has £23,450 in other accessible assets/savings BEFORE her property is sold, as if she does, she would be a self-funder and a Care Home company would be able to help you with finding a suitable nursing home for your mother.

If she does NOT have above this threshold at present, she is eligible for the local authority to fund her care while the property is sold and we would continue to identify a placement.’

  1. Miss B confirmed her mother did not have £23,450 in savings/assets. Over the next few weeks, the Council identified several care homes, which Mrs B’s family refused.
  2. On 8 January 2018 Miss B wrote to the Council. In the email she said ‘Funding: You said that mum is not a self funder because she does not have savings over £23,500. Therefore, social services will pay around £500 each week towards funding for her care. Any home found that costs more will need a top up from the family’.
  3. Mrs B’s family accepted a nursing home on 18 January 2018. The home wanted a high top up fee from the family, so the social worker noted on the file the family would need to sign to agree to this before the placement went ahead.
  4. Miss B signed the agreement to pay a third party top up of £269 per week, starting from 23 January 2018. The Council was paying £575 per week. The care home received a payment of £155 to fund Mrs B’s nursing care.
  5. Mrs B moved into the care home on 24 January 2018. Miss B had to pay the £269 top up from 23 January 2018. The Council disregarded the value of Mrs B’s home for the first 12 weeks, until 17 April 2018. Mrs B and Miss B were not informed of this until the Council wrote to them in June 2018. This was because the Council delayed carrying out the financial assessment until 4 June 2018.
  6. The Council wrote to Miss B on 7 June 2018, after the financial assessment. It said the Mrs B needed to repay the Council for:
    • £134-138 per week from 24 January until 18 April 2018.
    • £575 per week from 18 April 2018.

The letter also told Mrs B that she could ask the Council to defer payments until she sold her house.

  1. Miss B telephoned the Council and then emailed to complain the Council told her that her mother would only start paying for her care when she sold her house. The letter explained that Miss B was getting a power of attorney so she could sell her mothers house and find her a new residential placement. Miss B could not ask for the Council to defer fees as she did not have Power of Attorney to act on her mothers behalf.
  2. The Council replied on 17 July 2018. The letter to Miss B said that ‘As you are applying for authority to act you will need to update our account management team with your progress and make part payments from Mrs B’s benefits in the interim. When you do have the authority to sign the deferred payment application, we will be able to offer a deferred payment to assist with some of care and support costs.’ The Council also explained to Miss B that she could act as an appointee for her mother to receive benefits including pension credit and attendance allowance that she could use to pay part of the costs.
  3. The care home told the social worker that Mrs B could no longer stay at the care home on 17 August 2018.
  4. Miss B emailed the Council on 6 September 2018 to say she has just found out that her mother had revoked the Lasting Power of Attorney (which named Miss B) in March 2018.
  5. Mrs B moved to a new care home on 22 October 2018. This needed the family to pay a top up of £166 per week and the Council would pay £575 per week which the family would need to repay once Mrs B sold her house. The Council gave the family offers of care homes which did not need the top up.

My analysis

Disregarding the value of the home

  1. Mrs B owns her own home. Although Miss B lives with her, as she is under 60 years old, the Council does not have to disregard the Capital value of Mrs B’s home. However, it should consider whether to use its discretion to disregard the capital value of the home. It does not have to exercise this power, but it should fully consider a request to do so.
  2. I can find no evidence that Miss B asked the Council directly to disregard the capital value of the house because she was living there. But, there is evidence on the Council’s files that it asked Miss B if she lived at the property and the social worker explained the local authority may disregard the property given this. So, I do consider the Council should have formally considered whether to exercise discretion to disregard the value of the property in this case. This was fault. To put right the injustice caused by this fault, I consider the Council should now formally consider this. If the Council does consider it should disregard the capital value of Mrs B’s home then it should backdate this decision until January 2018 and carry out a new financial assessment. The family would remain responsible for the top-up charges, as these were their choice to pay.
  3. If the Council does not disregard the capital value of the property, then it is clear the Council is entitled to expect Mrs B to pay the entire cost of her care as she has capital above the threshold.

Information provided on care home costs

  1. Miss B complains the Council wrongly told her it would pay the £575 per week cost until Mrs B sold her home.
  2. The files show conflicting information on this point. The notes say Miss B told the social worker on 18 December the family are now considering selling the house and using the funds to pay privately for a nursing home. The social workers notes say she explained that once Mrs B sells her house she would have to pay the full cost of her care. The social worker emailed a leaflet on deferred payments to Miss B.
  3. Miss B was clearly aware from December 2017 that the capital value of Mrs B’s home would be considered when paying for her care. However, I can see from the wording in that telephone conversation that it could have been misunderstood, as Miss B says, that the family would not need to contribute until after Mrs B’s home was sold. At the same time, the Council sent Miss B the leaflet on deferred payments which told her that payment of the costs could be deferred until a house was sold.
  4. There was fault by the Council. The wording used to explain costs was not clear and there was a delay in carrying out the financial assessment. I now have to consider whether this fault caused an injustice to Mrs B and her family, i.e. whether the outcome would have been different.
  5. Mrs B owns property which means she has capital of more that £23,450. If the property is not disregarded, she is responsible for the cost of the care she has used.
  6. Miss B says the Council should pay the costs until Mrs B sells her house because it gave them the wrong information. She has said that she may have made different decisions if she had the correct information. But, as Mrs B is responsible for her care costs (if the property is not disregarded) I cannot say with any certainty that different decisions would have meant that Mrs B would not have paid for residential care. Indeed, Miss B has continued to keep Mrs B at the care home once the family were aware (from June 2018) that Mrs B would pay the entire cost of her care. So, this does say to me that it is unlikely the outcome would have been different. This is especially the case as the family have moved Mrs B to a different care home, which has a top-up charge, when they were aware Mrs B would need to pay the entire cost due to her capital assets.
  7. So, on balance of probability, I do not consider the faults by the Council meant the family incurred extra costs due to the wrong information and do not propose a remedy. Mrs B is in residential care and if the property is not disregarded, has been financially assessed as needing to pay for her care. I do, however, consider the Council should clearly outline the options available to Miss B if the family decide they do not wish to sell or cannot sell the home.

Agreed action

  1. The Council should consider whether to exercise discretion to disregard the capital value of Mrs B’s house (as her daughter lives there) within 2 months of the date of the decision on this complaint.
    • If the Council does disregard the capital value, then it should complete a new financial assessment (backdated to January 2018) on the contribution Mrs B is required to make towards care home fees.
    • If the Council does not disregard the capital value, then it should write to Miss B clearly explaining the reasons why.
  2. The Council should clearly outline the options available to Miss B if the family decide they do not wish to sell or cannot sell the home within 2 months of the date of the decision on this complaint.

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Final decision

  1. I have completed my investigation of this complaint. This complaint is upheld. There was fault by the Council which caused injustice to Mrs B and Miss B. I consider the recommended action enables the Council to establish the financial injustice caused and remedy it if needed.

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Investigator's decision on behalf of the Ombudsman

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